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Thursday, 22 October 2015

After having considered the relevant provisions of the Code, we have no doubt in our mind that the Special Judge, Aurangabad exceeded his jurisdiction in directing investigation under Section 156(3) of the Code by CBI by the impugned order. The learned Special Judge failed in appreciating that CBI is an independent establishment created under the provisions of Delhi Special Police Establishment Act and in view of the provisions of Section and of the said Act, he was not empowered to direct investigation by it. The learned Special Judge further did not appreciate that CBI is not a local police station within his jurisdiction so as to invoke section 156(3) of the Code in directing investigation by it. The
Superintendent of Police vs. Satish and Ors. (18.06.2015 - BOMH)

1. Heard. Rule. Rule made returnable forthwith with consent of
parties.2. A question that arises for consideration in the present
petition is,

"Whether the directions given by the learned Special
Judge, Aurangabad under Section 156(3) of Code of Criminal Procedure,
directing CBI, i.e. the present petitioner to make an investigation
into the complaint filed by Respondent No. 1 and to submit report
thereof, is legal and within the powers of the learned special
Judge.?"

3. Respondent No. 1 herein had preferred an application/complaint
bearing Criminal Misc. Application No. 170/2010 before the Special
Court at Aurangabad, dealing with anti-corruption cases and had
sought in the said application/complaint, a direction against CBI,
i.e. present petitioner to investigate into the said complaint under
Section 156(3) of Code of Criminal Procedure (for short, the Code).4. The learned Special Judge, vide impugned order has accordingly
directed such investigation under Section 156(3) of the code by the
present petitioner. By order passed on 6th January, 2011, this Court
has stayed the implementation and operation of the impugned order.5. In the present petition, it is the contention of the petitioner
that the order so passed by the learned Special Judge is patently
illegal, unsustainable and without jurisdiction.6. Shri Deshpande, learned Assistant Solicitor General of India
(ASGI) appearing for the petitioner submitted that the Central Bureau
of Investigation (CBI) is an independent investigating agency,
established under the Delhi Special Police Establishment Act, 1946
(for short, DSPE Act) and is controlled solely by the Union of India.
The learned ASGI has further submitted that from the provisions of
Sections and of DSPE Act, it is clear that the officers of CBI cannot
operate within the territory of the state without notification and
consent of the State Government. The learned ASGI further submitted
that the CBI is not a local police station within the jurisdiction of
the concerned Special Judge, Aurangabad, so as to issue directions
under Section 156(3) of Cr.P.C. The learned ASGI further submitted
that Section 193 of Cr.P.C. Bars the Sessions Court from taking
direct cognizance of the offences and Section 190 of Cr.P.C. Also
contemplate that the Judicial Magistrate, First Class can only take
cognizance of offence on a complaint filed before him. The learned
ASGI reiterated that since the office of the petitioner is not
situated within the local jurisdiction of the learned Special Judge,
the order passed by the learned Special Judge, directing
investigation under Section 156(3) Cr.P.C. by the petitioner is
patently illegal and in excess of the jurisdiction vested in the said
Court.7. The learned ASGI, in support of his contentions, relied upon
two Judgments of the Hon'ble Apex court; first in the matter of CBI
v. State of Rajasthan - MANU/SC/0042/2001 : (2001) 3 SCC 333 and the
another in the case of Sakiri Vasu v. State of U.P. And Others
-MANU/SC/8179/2007 : (2008) 2 SCC 409 and prayed for setting aside
the impugned order.8. The learned counsel appearing for Respondent No. 1 supported
the impugned order. The learned Counsel submitted that it was well
within jurisdiction of the learned Special Judge to direct
investigation by the present petitioner under Section 156(3) Cr.P.C.
He, therefore, prayed for dismissal of the writ petition.9. We have carefully considered the submissions advanced on behalf
of the petitioner as well as Respondent No. 1. We have also perused
the impugned order. We have also gone through the relevant provisions
in Cr.P.C. And the Prevention of Corruption Act as well as the
provisions of Delhi Police Special Police Establishment Act.10. We would first deal with the argument of the learned ASGI that
the Special Judge is not a 'Magistrate' and, therefore, cannot pass
order under Section 156(3) of the Code. This controversy is set at
rest long back by a decision of five-judges Bench of the Hon'ble Apex
Court in the case of A.R. Antule v. Ramdas Nayak and Anr. -
MANU/SC/0082/1984 : AIR 1984 SC 718. In paragraph 27 of the said
decision, the Hon'ble Apex court has ruled as under, -

"The Court of a Special Judge is a Court of original
criminal jurisdiction. As a Court of original criminal jurisdiction
in order to make it functionally oriented some powers were conferred
by the statute setting up the Court. Except those specifically
conferred and specifically denied, it has to function as a Court of
original criminal jurisdiction not being hidebound by the
terminological status description of Magistrate or a Court of
Session. Under the Code it will enjoy all powers which a Court or
original criminal jurisdiction enjoys save and except the ones
specifically denied."

In view of the aforesaid Supreme court dicta, it becomes
abundantly clear that the Special Judge has power to pass order under
Section 156(3) of the Code as a Court of original criminal
jurisdiction. His this power is not restrained or specifically denied
by any statute.11. Moreover, in view of the fact that the complaint was
pertaining to the offences under the Prevention of Corruption Act,
the only court which has jurisdiction to take cognizance of such
offences is the Special Court. This is clear from Section 4 of the
Prevention of Corruption Act, 1988, which says that notwithstanding
anything contained in the Code, the offences specified in the Act
shall be tried only by a Special Judge. The Prevention of Corruption
Act, provides that only a person who is or has been a Sessions Judge
shall be qualified for appointment as a Special Judge. The cumulative
effect of such provisions is that only a Special Judge is competent
to take cognizance of the offences specified in the Act. No
Magistrate can therefore take cognizance of such offences. If a
Magistrate cannot take cognizance of certain offences, he has no
power to order investigation under Section 156(3) of the Code in
respect of such offences.12. In the instant case, thus only the Special Judge was competent
to take cognizance of the complaint filed by Respondent No. 1
involving allegations pertaining to the offences under the Prevention
of Corruption Act. The objection raised by the learned ASGI therefore
must be rejected.13. Now, regarding the second and main controversy raised in the
matter as about the competence of the Special Judge, Aurangabad to
direct investigation under Section 156(3) of the Code by CBI. As has
been submitted by the learned ASGI, the learned Special Judge could
not have directed CBI to carry out the investigation under Section
156(3) of the Code. To substantiate his said contention, the learned
ASGI has relied upon the judgment of the Hon'ble Apex court in the
case of Central Bureau of Investigation through S.P. Jaipur v. State
of Rajasthan (cited supra). In the said matter, the facts were thus :
a complaint was filed before the Magistrate alleging serious
offences, whereupon the concerned Magistrate ordered investigation to
be conducted by CBI and on completion of the investigation, final
report was required to be filed. The CBI challenged the order of the
Magistrate before the High Court of Delhi, contending that the
Magistrate has no jurisdiction to order CBI to conduct investigation
at least without obtaining the consent of the State Government
concerned, as required under Section of the Delhi Special Police
Establishment Act, 1946. The Division Bench of the Delhi High court
held that the Magistrate has power to do so. Thereafter the matter
was taken to the Apex Court. The Hon'ble Apex Court, after having
interpreted the powers of the Magistrate under Section 156(3) of the
Code, set aside the order passed by the Magistrate as well as by the
High court and ruled that it was not within the competence of the
Magistrate to direct the investigation by CBI.14. As observed by the Hon'ble Apex court in the Judgment (cited
supra) what is contained in subsection (3) of Section 156 of the Code
is the power to order the investigation referred to in sub-section
(1) because the words 'order such an investigation as above
mentioned' in sub-section (3) are unmistakably clear as referring to
the other sub-section. Thus, the power is to order an 'officer in
charge of a police station' to conduct investigation.15. For better appreciation, we would like to reproduce Section
156 of the Code, which reads thus, -

"156. Police officer's power to investigate
cognizable case:-

(1) Any
officer in charge of a police station may, without the order of a
Magistrate, investigate any cognizable case which a Court having
jurisdiction over the local area within the limits of such station
would have power to inquire into or try under the provisions of
Chapter XIII.

(2) No
proceeding of a police officer in any such case shall at any stage be
called in question on the ground that the case was one which such
officer was not empowered under this section to investigate.

(3) Any
Magistrate empowered under section 190 may order such an
investigation as above mentioned."

16. It is also necessary to look into the definitions of 'police
station and 1 office in charge of a police station' as provided in
the Code.Section 2(o) of the Code defines 'officer in charge of a police
station' as under, -

"officer in charge of a police station"
includes, when the officer in charge of the police station is absent
from the station-house or unable from illness or other cause to
perform his duties, the police officer present at the station-house
who is next in rank to such officer and is above the rank of
constable or, when the State Government so directs, any other police
officer so present; "

Section 2(s) of the Code defines a 'police station' as under, -

"police station" means any post or place
declared generally or specially by the State Government, to be a
police station, and includes any local area specified by the State
Government in this behalf"

From the conjoint reading of the aforesaid definitions, it is
evident that the primary responsibility of conducting investigation
into offences in cognizable cases, vests with 'officer in charge of a
police station'. Section 156(3) of the Code empowers a Magistrate to
direct such officer in charge of the police station to investigate
any cognizable case over which such Magistrate has jurisdiction. As
provided under Section 14 of the Code, 'subject to control of the
High Court, the Chief Judicial Magistrate may, from time to time,
define local limits of the ares within which the Magistrate appointed
under Section 11 or under Section 13, may exercise all or any of the
powers with which they may respectively be invested under this Code.
The magisterial power thus cannot be stretched under sub-section (3)
of Section 156 of the Code beyond directing the officer in charge of
the police station falling within the jurisdiction of the said
Magistrate. In other words, the Magistrate cannot order any police
officer, other than one, who is in-charge of the police station
within his jurisdiction to conduct the investigation. Such powers of
the Magistrate under sub-section (3) of Section 156 of the Code, does
not authorize the Magistrate to give direction to any other officer
to cause inquiry.17. It need not be stated that the principles involved in so far
as powers of the Magistrates under Section 156(3) of the Code are
concerned, the same as well would apply to the Special Judge dealing
with the anti-corruption matters as the court of original criminal
jurisdiction.18. After having considered the relevant provisions of the Code,
we have no doubt in our mind that the Special Judge, Aurangabad
exceeded his jurisdiction in directing investigation under Section
156(3) of the Code by CBI by the impugned order. The learned Special
Judge failed in appreciating that CBI is an independent establishment
created under the provisions of Delhi Special Police Establishment
Act and in view of the provisions of Section and of the said Act, he
was not empowered to direct investigation by it. The learned Special
Judge further did not appreciate that CBI is not a local police
station within his jurisdiction so as to invoke section 156(3) of the
Code in directing investigation by it. The impugned order is,
therefore, liable to be set aside and the same is accordingly set
aside. However, the original complainant, i.e. respondent No. 1 in
the present petition, is at liberty to move again to the Special
Court, if he so desires, for appropriate orders for investigation of
the offences alleged by him in the said complaint against Respondent
Nos. 2 to 6 in the present petition. Rule is made absolute in above
terms.